The Government of India Act 1935: the Three Lists

The drafting produces a strict order of precedence: List I beats List III, and List III beats List II. Article 246 of the Constitution says the same thing in the same order with the same "notwithstanding" clauses.

The Seventh Schedule contains:

Entry 16 of Part I of List III is "Legal, medical and other professions", and it is worth noting here because it is the entry under which the Advocates Act 1961 was later passed, on the Constitution's corresponding entry.

Sections 101 to 106: the qualifications

Section 101: nothing in the Act empowers the Federal Legislature to make laws for a Federated State otherwise than in accordance with that State's Instrument of Accession and any limitations in it. The Lists were therefore a full division of power over British India and a partial and variable one over the States.

Section 102: the Proclamation of Emergency. If the Governor-General in his discretion declares by Proclamation that a grave emergency exists whereby the security of India is threatened, whether by war or internal disturbance, the Federal Legislature acquires power to make laws for a Province on Provincial List matters, though no Bill may be introduced without his previous sanction, which he is to give only if the provision is proper in view of the nature of the emergency. Article 250 of the Constitution is this section, and the words "war or internal disturbance" travelled into article 352 and stayed there until 1978.

Section 103: if the legislatures of two or more Provinces resolve that a Provincial List matter should be regulated in those Provinces by federal Act, the Federal Legislature may pass such an Act, and any Province to which it applies may afterwards amend or repeal it by its own Act. Article 252 keeps the whole mechanism.

Section 104: the residuary power, and the great difference from the Constitution. The Governor-General may by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law on any matter not enumerated in any of the Lists, including a tax not mentioned in any List, and the corresponding executive authority follows.

Read that twice, because it is the answer to a favourite examination question. Under the Act of 1935 the residuary power belonged to neither legislature. It was in the Governor-General's gift, and he could give it to either, case by case. The reason was political: the Muslim League wanted the residue with the provinces and Congress wanted it with the centre, and the Act gave it to a third party. Under article 248 of the Constitution the residuary power, including the power to impose a residuary tax, belongs to Parliament, and entry 97 of List I is its enumeration.

Section 105: application of the Naval Discipline Act to the Indian naval forces.

Section 106: the Federal Legislature may not, by reason only of the Federal List entry about implementing treaties and agreements with other countries, make a law for a Province without the previous consent of the Governor, or for a Federated State without the previous consent of the Ruler.

That is a second great difference. Under article 253 of the Constitution, Parliament may make any law for the whole or any part of India for implementing a treaty, and no State's consent is required, notwithstanding the distribution of powers. In 1935 the treaty power stopped at the provincial border unless the Governor let it through.

Section 107: repugnancy

This is the section a student is most likely to be asked to compare with article 254, and the comparison is close to exact.

107(1): if a provision of a Provincial law is repugnant to a provision of a Federal law which the Federal Legislature is competent to enact, or to an existing Indian law on a Concurrent List matter, the Federal law or the existing Indian law prevails, whether passed before or after the Provincial law, and the Provincial law is void to the extent of the repugnancy.

107(2): but where a Provincial law on a Concurrent List matter is repugnant to an earlier Federal or existing Indian law, and the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His Majesty's pleasure, has received assent, then the Provincial law prevails in that Province. The Federal Legislature may nevertheless legislate again on the same matter, but a Bill repugnant to such a reserved and assented provincial law needs the previous sanction of the Governor-General in his discretion.

107(3): a law of a Federated State repugnant to a Federal law extending to that State is void to the extent of the repugnancy.

Article 254(1) and (2) is 107(1) and (2) with the President for the Governor-General, and it is the provision under which a State amendment to a central Act, once reserved and assented to, holds the field in that State.

Section 108: what could not even be introduced

Chapter II of Part V is headed Restrictions on Legislative Powers, and section 108(1) lists the Bills that could not be introduced or moved in either Chamber of the Federal Legislature unless the Governor-General in his discretion thought fit to give his previous sanction. A Bill that:

• (a) repeals, amends or is repugnant to any Act of Parliament extending to British India;
• (b) repeals, amends or is repugnant to a Governor-General's or Governor's Act or an ordinance promulgated in his discretion;
• (c) affects matters on which the Governor-General is required to act in his discretion;
• (d) repeals, amends or affects any Act relating to any police force;
• (e) affects the procedure for criminal proceedings in which European British subjects are concerned;
• (f) subjects non-residents to greater taxation than residents, or companies not wholly controlled and managed in British India to greater taxation than those that are.

Two of these deserve a sentence each in an answer. Paragraph (a) means the Indian legislature could not touch British statute law applying to India without leave, which is the limit that only the Indian Independence Act removed. Paragraph (e) preserves the racial privilege in criminal procedure that had produced the Ilbert Bill controversy fifty years earlier: even in 1935, a Bill about how European British subjects were tried needed the Governor-General's sanction before a member could move it.

A worked example

A Provincial Legislature in 1940 passes a Money-lenders Act regulating agricultural debt.

1. Which List? Money-lending and money-lenders is a Provincial List entry; contracts is Concurrent (List III, Part I, entry 10). If the Act is in pith and substance about money-lending, it is provincial legislation, and the incidental effect on contract does not take it out of List II. Lists of entries have to be read that way, because no scheme of enumerated powers can be drafted so that a real statute touches one entry and no other, and the same approach is taken to the Seventh Schedule of the Constitution.
2. Is there a repugnant federal law? If the Act cuts down rights under an existing Indian law on a Concurrent matter, section 107(1) makes it void to the extent of the repugnancy.
3. Unless it was reserved. If the Governor reserved the Bill and the Governor-General assented, section 107(2) makes the Provincial Act prevail in that Province, and a federal Bill to undo it would need the Governor-General's previous sanction.
4. And if the matter is in no List at all? Then neither legislature may touch it until the Governor-General notifies under section 104 which of them may.

What beginners get wrong

"The 1935 Act gave the residuary power to the centre." It gave it to the Governor-General, who could confer it on either legislature by public notification under section 104. The Constitution gave it to Parliament, by article 248.

"There were three lists, so it was a federation like ours." The lists are the same technique. What is not the same is that the units of this federation had not all joined, that a Federated State's exposure was governed by its own Instrument of Accession under section 101, and that the treaty power could not enter a Province without the Governor's consent under section 106.

"Concurrent means the province cannot legislate." Concurrent means both may. The question of which prevails arises only where the two laws are repugnant, and section 107 answers it.

"Section 108 was a formality." It was the list of subjects on which the Indian legislature could not even begin without the Governor-General's leave, and it included Acts of Parliament, the police, and criminal procedure for Europeans.

Limits and criticism

The scheme has been criticised, fairly, for centralising while appearing to divide. Two lists exclusive and one concurrent looks even-handed until you add section 102, which lets the centre take the Provincial List in an emergency it declares itself; section 104, which puts the unenumerated residue in the hands of an appointed officer; and section 108, which requires his sanction before whole classes of Bill can be moved.

And the division was drawn on the assumption of a federation of two very different kinds of unit. It had to be flexible enough for a Province with an elected legislature and a State with a Ruler who had negotiated his own terms, which is why sections 101 and 106 make the Federal Legislature's power over a State a matter of contract rather than of constitutional law.

What is to its credit is that it worked well enough to be kept. The Constituent Assembly had before it a tested distribution of legislative power with a decade of judicial interpretation attached, and it took it, enlarged the entries, moved the residue to Parliament and gave the treaty power full reach. The result is the Seventh Schedule that every Indian constitutional law paper still turns on.

Quick revision

• s.99: the Federal Legislature legislates for British India or a Federated State; a Provincial Legislature for its Province. 99(2) saves five classes of extra-territorial operation.
• s.100: List I Federal (59 entries), List II Provincial (54), List III Concurrent (36, in two Parts). Precedence: List I over List III over List II. 100(4): the centre may legislate on provincial subjects outside a Province.
• s.101: over a Federated State, only in accordance with its Instrument of Accession.
• s.102: on a Proclamation of Emergency by the Governor-General in his discretion, war or internal disturbance, the centre may legislate on the Provincial List. Article 250.
• s.103: two or more Provinces may resolve to have a provincial matter regulated federally, and may later amend or repeal that Act for themselves. Article 252.
• s.104: the residuary power is the Governor-General's to confer on either legislature by public notification. The Constitution gives it to Parliament, article 248.
• s.106: the treaty-implementing entry does not reach a Province without the Governor's consent or a State without the Ruler's. Contrast article 253.
• s.107: repugnancy. Federal law prevails and the provincial law is void to the extent of the repugnancy; but a provincial law on a concurrent matter that was reserved and assented to prevails in that Province. Article 254.
• s.108: previous sanction of the Governor-General in his discretion for Bills touching Acts of Parliament, Governor-General's or Governor's Acts and discretionary ordinances, discretionary matters, the police, criminal procedure for European British subjects, and discriminatory taxation.

Test yourself

1. Set out the three Lists and the order of precedence between them. List I the Federal Legislative List, on which only the Federal Legislature may legislate; List II the Provincial Legislative List, on which only a Provincial Legislature may legislate for its Province; and List III the Concurrent Legislative List, on which both may. By the "notwithstanding" clauses of section 100, List I prevails over List III and List III over List II.

2. Where did the residuary power lie, and how does that differ from the Constitution? In neither legislature. By section 104 the Governor-General might by public notification empower either the Federal or a Provincial Legislature to legislate on a matter not enumerated in any List, including an unenumerated tax. Under article 248 of the Constitution the residuary power belongs to Parliament.

3. State the rule in section 107 and its exception. A provincial law repugnant to a federal law the Federal Legislature is competent to enact, or to an existing Indian law on a concurrent matter, is void to the extent of the repugnancy, whether the federal law came earlier or later. The exception is that a provincial law on a concurrent matter which was reserved for the Governor-General or His Majesty and received assent prevails in that Province, subject to further federal legislation, for which the Governor-General's previous sanction is needed.

4. Why could the Federal Legislature not implement a treaty for a Province as Parliament can today? Because section 106 provided that the treaty-implementing entry in the Federal List did not by itself give power to make a law for a Province without the previous consent of the Governor, or for a Federated State without the consent of the Ruler. Article 253 of the Constitution contains no such requirement.

5. Name three classes of Bill that needed the Governor-General's previous sanction under section 108. Any Bill repealing, amending or repugnant to an Act of Parliament extending to British India; any Bill affecting an Act relating to a police force; and any Bill affecting the procedure for criminal proceedings in which European British subjects were concerned. Bills touching Governor-General's or Governor's Acts, discretionary matters, and discriminatory taxation of non-residents complete the list.